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Thursday, October 26, 2006

The BBC's Money Programme tomorrow is entitled "The Real Cost of Divorce". I don't yet know whether I'll be able to watch it, but there is a short preview article here. Two things from the article are striking:

Firstly, celebrity lawyer Raymond Tooth is quoted as saying: "A rich man in my view should not marry a poor woman. If he does, then he must have a pre-nuptial agreement". Fair enough, advise a client to enter into a pre-nuptial, but did he really say a rich man should not marry a poor woman? Is he really so materialistic that he considers that wealth, or lack of it, should determine whether two parties marry? I find such a concept as abhorrent as the nonsense that someone from one religious or ethnic background should not marry anyone from a different background.

The second point is the claim in the article that "the average cost of ending a marriage through the British courts is about £13,000 per divorce". Where did this figure come from? I assume the programme will shed some light on this, but it surely cannot take into account the vast majority of divorces that are undefended and where all ancillary matters are resolved by agreement. For the majority of family lawyers who do not represent the rich and famous costs anywhere near this figure are a comparative rarity. Unfortunately, seeing such a figure quoted by as reputable an organisation as the BBC will strike fear into the hearts of many who are contemplating divorce, and add to the general public's loathing of the profession.

Sunday, October 22, 2006

If there's one thing that's even more mindless than watching fireworks, it's reading the tabloid newspapers. Following on from my last post, the Mail on Sunday today devotes some four pages to Heather McCartney's claims against her husband, including allegations that he beat up his previous wife, Linda. My best advice is to do as I have, and not read it. Unfortunately, it seems many will not follow this advice - the only thing that is sadder than the fact that these allegations have been published is the fact that they sell newspapers.

If there is one good thing that comes out of all of this I hope it will be that the case is the best advert for the modern, conciliatory, approach to family matters - the approach taken here can surely only be a disaster for all concerned, especially the child.

Wednesday, October 18, 2006

Oh dear. Today the Daily Mail has published what purport to be extended extracts from Heather McCartney's cross petition. I could discuss ad nauseam the merits of defending divorce proceedings and whether it is necessary to go on at such length with your allegations against the other party, but I won't. What bothers me here is that the allegations have been published at all. I don't know who is responsible for passing them to the Daily Mail or their motives for doing so (although I could guess), but I just find it incredibly sad and distasteful that such private matters have found their way into a national newspaper.

Tuesday, October 17, 2006

The law on cohabitation continues to make the news, with the Department for Constitutional Affairs publishing a report presenting "findings from an in-depth study of 29 former cohabitants exploring how couples make arrangements for parenting and financial division following separation from a cohabiting relationship". If you have time to read all 190 pages, the full report can be found here, but there is a more manageable 7 page 'executive summary' here. The conclusion to the summary states that "the fact that wider use of cohabitation law would not have addressed all the instances of disadvantage [in the study] supports the current review of the legal framework" but that "the study does not clearly indicate the superiority of any one option for reform", with the only real recommendation being "educating people about the legal implications of cohabitation and of different arrangements, and encouraging greater use of cohabitation agreements". Quite how we dispel the myth of the 'common law marriage' (see my previous post here), I don't know, but somehow I think it will take more than the suggestions in the report, which included reviewing entitlement to legal aid (unlikely), an information pack, an ‘idiot’s guide’ to cohabitation available via the Internet and a dedicated advice-line for cohabitants and former cohabitants.

Wednesday, October 11, 2006

Thanks also to Justin Patten for mentioning Family Lore in this week's Blawg Review, the first time the review has been hosted by a British blogger. Blawg Review is a blog that describes itself as "the blog carnival for everyone interested in law". For an explanation of what this means, see this post.

Thanks to Justin Patten of Human Law for pointing out that there is another English family law-related blog out there. It's nice to know I'm not alone! Divorcesolicitor is by Lynne Bastow, a sole practitioner in Southampton. Lynne describes herself as having had "a varied career background, starting off with a degree in Economics and working in accounts and then sales", and that she switched to law as she "preferred reading about people rather than money". The posts on the blog mostly comprise articles on particular areas of family law, which gives the impression of it being an extension of her firm's website. It will be interesting to see how Divorcesolicitor develops.

The Church of England has published it's response to the Law Commission's consultation on cohabitation. As one would expect, the Church recommends "that public policy should promote and encourage marriage, as it contributes to the common good" and accordingly it rejects both "the notion of an opt-in to a new legal status for cohabitees on the ground that this runs a serious risk of undermining marriage" and "the proposals for reform based on the length of cohabitation for couples who do not have children on the grounds that this is more likely to give substance to the myth of common-law marriage, rather than dispel it". However, citing "the example and teaching of Jesus, standing alongside those with no voice, especially children", it is "sympathetic to reform that addresses the effect of relationship breakdown on children and those who make sacrifices to care for them".

I'm sure the Law Commission will give considerable weight to the views of the C of E. However, what amuses me about the response is it's reference in paragraph 14 to addressing "situations that fall short of biblical ideals". Exactly what 'biblical ideals' are they referring to? Perhaps the ideal that homosexuality is a sin, or maybe even the ideal that a man should stone his wife to death if he discovers she is not a virgin? Of course, I'm certain that any member of the Church of England will say they do not agree with stoning wives (although no doubt many will still say homosexuality is a sin), but this is because of their own morality, not the teaching of the Bible. Why should the laws of this country be so influenced by the 'moral guidance' of religion?

Tuesday, October 10, 2006

The other site that 'Toon' recommended was Dads UK, which describes itself as "a news and information site dedicated to giving a voice and support to all people interested in fathers' rights". There doesn't seem to be an awful lot on the main site, but Toon recommends the forum, which he says "provides support and advice to dads going through Family Law hell". I can't comment myself, as I haven't registered for the forum and it can't be accessed, even for viewing, without registration.

Only one thing I would say about all fathers' rights sites and organisations: what about all those mothers who are denied contact with their children? I know some of these sites/organisations provide help to mothers too, but a lot of mothers will be put off by the word 'dads' or 'fathers' in their names.

Sunday, October 08, 2006

When he wrote to me recently requesting that I include a link to Real Fathers for Justice on this blog, 'Toon' (something tells me he's a Newcastle supporter) also mentioned two other websites, one of which was the Equal Parenting Alliance. I've now had a chance to look at this site. The Equal Parenting Alliance is a new UK political party, formed in February 2006, that believes "our shambolic family law system is failing children, failing families, failing parents and putting at overall risk the future of our society it should be helping to secure". The policies of the party include:

That there should be a legal presumption of reasonable parenting time for children and both parents, in the event of parental separation;

That a shared residence arrangement should be the normal arrangement when there are two fit, capable parents;

That there must be a good reason for delaying or preventing contact between a child and parent; and

That those making maliciously false allegations in a family court should face the charge of perjury.

I certainly agree that there is rarely a good reason to deny a child contact with one of it's parents and that unfortunately all too often contact is opposed for no good reason (although sometimes the parent with the child genuinely but erroneously believes that there is a good reason to deny contact). However, I think that most of the professionals involved in the family courts system will take exception to the allegations by the party that they are "ignorant" or "lazy". I'm sure that there is scope to improve the system, but I wonder whether groups such as this are expecting too much from any system, when the real problem surely lies with the attitude of parents who are using denial of contact as a weapon against their former partners - an attitude that I doubt will change with the threat of criminal proceedings.

Friday, October 06, 2006

There's an interesting article about divorce reform in this week's Gazette. It refers to the proposed new Family Procedure Rules, which I mentioned previously in this post, and uses this as a pretext to take the views of various family law luminaries on the subject of reforming the law generally.

So far as divorce itself is concerned, there are the usual calls for the introduction of a no fault system, but what I found most interesting were some of the comments made regarding the recent cases on ancillary relief (to non-lawyers: financial/property cases). In particular, Lord Justice Thorpe expresses his concerns at courts rather than parliament effectively reforming the system:

"I don’t think it is for judges to introduce a virtual equality presumption when dividing assets. You could say that the effect of White (White v White (2001) 1 AC 596), which introduced the “yardstick of equality”, was to introduce a sort of community of property regime. However, my position has always been that it is for Parliament to reform the law of ancillary relief."

Agreed, although whatever parliament says it will, of course, still be up to the courts to interpret the law. On this subject Resolution Chairman Andrew Greensmith complains that the interpretation of the law is being left to the courts to decide in the big money cases: "because it is only people in big-money cases that can afford it, we end up with a distorted picture which we then have to apply to Mr and Mrs Bloggs". Agreed again - I have commented on more than one occasion previously about the relevance of such decisions to parties of more modest means.

Thursday, October 05, 2006

I've finally gotten around to adding a link to The Magistrate's Blog in my 'blogroll'. Written anonymously by 'Bystander' and previously known as 'The Law West of Ealing Broadway', the blog contains "Musings and Snippets from an English Magistrate". Usually amusing, but always well worth a read.

I've had several cases recently where the court has refused to make a financial consent order because the judge was not satisfied that the order was fair and reasonable, despite the 'disadvantaged party' making it absolutely clear that they were happy for the order to be made. I'm not sure that a system that works in this way is doing the parties any favours, as it seems to be either sparking dispute where there was none, or denying couples 'closure' to their divorce.

For the benefit of non-lawyers, a financial consent order is an order setting out the terms of an agreed financial/property settlement on divorce and, usually, dismissing all other financial/property claims, thereby ensuring that the settlement is final. Before the court makes the order it requires both parties to provide a few brief details of their financial circumstances, so that the court can ensure that the order it is being asked to make is fair and reasonable.

The problem arises when, as happens quite often, one party is perfectly happy to accept less than they might be entitled to. There could be many reasons for this that do not affect the court's decision, such as guilt at being the party responsible for the breakdown of the marriage, genuine belief that an equal division of assets would be unfair, or simply not being interested in material things. Would it not be best if the court granted such people the order they want, provided it is satisfied that they understand what they are doing, and that there has been no duress or undue influence?

Wednesday, October 04, 2006

One of the foundation stones of blogging is the right to freedom of speech. I may not agree with what another blogger says in their blog, but I'll defend their right to say it. It was therefore with some concern that I (along with other users of Blogger) recently received the following email:

"Hello there,

It's been brought to my attention that Blogspot has become some what of a haven for what can only be described as "Pro-Paedophile Activists."

So far I've uncovered roughly 30 pro-paedophile blogs and have been urging others to flag them (I'll send ya a copy if you want) as Blogspot has asked me to do.

What I would like your help with, is to use your position as a member of Blogspot and put pressure on Blogspot to take action.

With great concern,

Jacey"

What is it about paedophilia that causes such mass hysteria these days? It's not as if it is a new phenomenon. I've not seen any of the alleged 'pro-paedophile blogs', and nor do I know their addresses, so I don't know what they contain, but if they have been brought to the attention of Blogger then it seems that the Blogger Terms of Service ('BTS') contain everything that is required to deal with the situation, in paragraph 12:

"Member agrees: ... not to use the Service for illegal purposes ... Member agrees not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, or harmful material of any kind or nature. Member further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation."

and:

"Pyra [the company that owns and operates Blogger] may, at its sole discretion, immediately terminate Service should Member's conduct fail to conform with these terms and conditions of the BTS."

Surely, we must let Blogger deal with the matter in accordance with their Terms of Service, rather than resort to 'mob rule'? If these blogs contain criminal material and Pyra fails to act then it could itself be liable to criminal sanctions. If, on the other hand, the blogs contain nothing that contravenes the BTS, then we must allow them to continue, even if we don't like what they say.

Tuesday, October 03, 2006

Having now completed my first reading of The God Delusion, I would like to say a few more words about it. I have said previously that I may write a complete review, but for the moment I will limit myself to the theme in the book that I have mentioned here before and that has a direct relevance to the subject of this blog: religion and children.

Professor Dawkins devotes a whole chapter to the subject, entitled "Childhood, abuse and the escape from religion". In it he deals with a number of issues, but one of the most disturbing is the rise of faith schools in this country. He gives the example of the Emmanuel College in Gateshead, set up under the present government's policy to encourage rich benefactors to put up a relatively small sum of money to found a school, with the government paying the rest, plus all running costs thereafter. As stated on the front page of it's website the college "proudly bases its ethos upon the Christian Faith and Biblical Principles". What is not included on the website is the text of a lecture that the college's head of science gave at the college on 21 September 2001, on 'The Teaching of Science: A Biblical Perspective'. I'll repeat a couple of the quotes from the lecture that Dawkins gives:

"...we stand firm upon the bare proposition that God has spoken authoritatively and inerrantly in the pages of holy Scripture. However fragile, old-fashioned or naive this assertion may ostensibly appear, especially to an unbelieving, TV-drunk modern culture, we can be sure that it is as robust a foundation as it is possible to lay down and build upon"; and:

"...Christians, with very good reason, reckon the Scriptures of the Old & New Testaments a reliable guide concerning just what we are to believe. They are not merely religious documents. They provide us with a true account of Earth history which we ignore at our peril".

As Dawkins says, you have to pinch yourself to make sure you're not dreaming. These are the words of the head of science at a school in 21st century England! Interestingly, the text of the lecture appeared on a christian website, but was quickly removed after Dawkins publicised it in The Daily Telegraph. Unfortunately for the school, it can still be found here.

Worried about the implication that the scriptures provide a literal account of geological history, Dawkins, together with eight other senior scientists, including Sir David Attenborough, and eight bishops wrote to Tony Blair, only to receive a 'perfunctory and inadequate' reply referring to the school's good examination results and OFSTED report. As Dawkins says: "if the OFSTED inspectors gave a rave report to a school whose head of science teaches that the entire universe began after the domestication of the dog, there might just be something a teeny weeny bit wrong with the standards of the inspectorate".

Monday, October 02, 2006

I have been asked by 'Toon' of the Real Fathers for Justice Admin Team to include a link to their site on this blog, and in the interests of even-handedness, I have done so. Toon says of his organisation: "We broke away from the old F4J in June '05 and have continued with the direct action campaign. We have also continued to hold regular monthly campaign meetings around the UK where parents with contact and residency issues can seek help and hope from others in a similar situation".

Please note (and this is not meant as any comment upon RFFJ), that a link on this blog is not meant as an endorsement of any particular organisation, or that a mentioned organisation is recommended over one that is not.

Knowing that it was being updated, I've been going back to the NACCC website from time to time, to check on progress. The update has now been completed, and I recommend the site for anyone who is considering making a referral to a child contact centre - the FAQ page especially contains some very helpful information.

I had hoped that the site would include the NACCC's Directory of Child Contact Centres, which can be particularly useful if you are looking for a centre outside of your area, but it does not. It does, however, have a 'Centre Enquiry Form' (on the 'Referring' page), where you can request the NACCC to send you details of the centre or centres local to the town where you would like the contact to take place.

Disclaimer

Nothing in this blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should consult a solicitor. Any links to other blogs or web sites are provided for convenience only and I cannot accept any responsibility for the contents of such linked blogs/sites.